<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 12, 2000
REGISTRATION NO. 333-
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
THE JOHN NUVEEN COMPANY
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 36-3817266
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
333 WEST WACKER DRIVE 60606
CHICAGO, ILLINOIS (Zip Code)
(Address of principal executive offices)
</TABLE>
AMENDED AND RESTATED 1996 EQUITY INCENTIVE AWARD PLAN
(Full title of the Plan)
------------------------
ALAN G. BERKSHIRE, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
THE JOHN NUVEEN COMPANY
333 WEST WACKER DRIVE
CHICAGO, ILLINOIS 60606
(Name and address of agent for service)
(312) 917-7700
(Telephone number, including area code, of agent for service)
------------------------
CALCULATION OF REGISTRATION FEE
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AMOUNT PROPOSED PROPOSED
TITLE OF TO BE MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) PRICE PER SHARE(2) OFFERING PRICE(2) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Class A Common Stock, par
value $.01 per share...... 3,500,000 shares $38.844 $135,954,000 $35,891.90
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</TABLE>
(1) Plus such indeterminate number of shares as may be issued to prevent
dilution resulting from stock splits, stock dividends or similar
transactions in accordance with Rule 416 under the Securities Act of 1933.
(2) Pursuant to Rule 457(h) and Rule 457(c) under the Securities Act of 1933,
the proposed maximum offering price per share and the registration fee are
based on the reported average of the high and low prices for the
Registrant's Class A Common Stock on the New York Stock Exchange on May 5,
2000.
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<PAGE> 2
PART II -- INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed by The John Nuveen Company (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference herein and shall be deemed to be a part hereof:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1999.
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), since the
end of the last fiscal year covered by the registrant document referred to
in (1) above.
(3) The description of the Company's Class A Common Stock contained in
the Registration Statement on Form 8-A, filed with the Commission pursuant
to Section 12 of the Exchange Act on April 27, 1992, including any
amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be part hereof
from their respective dates of filing (such documents, and the documents
enumerated above, being hereinafter referred to as "Incorporated Documents").
Any statement contained in an Incorporated Document shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the Class A Common Stock being registered is being passed
upon for the Company by Alan G. Berkshire, Esq., Senior Vice President, General
Counsel and Secretary of the Company. At May 10, 2000, Mr. Berkshire owned 3,000
shares of the Class A Common Stock. Mr. Berkshire has also been granted options
to purchase an aggregate of 102,000 shares of Class A Common Stock and 5,000
shares of restricted stock under the Company's Amended and Restated 1996 Equity
Incentive Award Plan.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102 of the Delaware General Corporation Law allows a corporation to
eliminate the personal liability of a director to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except in cases where the director breached his duty of loyalty, failed to act
in good faith, engaged in intentional misconduct or a knowing violation of law,
authorized the unlawful payment of a dividend or approved an unlawful stock
repurchase or derived an improper personal benefit. The Company's Restated
Certificate of Incorporation contains a provision which eliminates directors'
personal liability as set forth above.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify any person who was or is threatened to be a party to
any threatened, pending or completed action, suit, or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he is or
was a director, officer, employee or agent of the corporation or is or was
serving at its request in such capacity in another corporation or business
association against expenses (including attorneys' fees), judgments, fines and
<PAGE> 3
amounts paid in settlement, actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
Article TWELFTH of the Company's Restated Certificate of Incorporation and
Section 6.4 of Article VI of the Company's Bylaws provide in effect that the
Company shall indemnify its directors, officers and employees to the extent
permitted by Section 145 of the Delaware General Corporation Law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
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EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
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<C> <S>
4.1 The Company's Restated Certificate of Incorporation
(incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-1 (No. 33-46922))
4.2 Amended and Restated By-Laws (incorporated by reference to
Exhibit 3.2 to the Company's Form 10-K for year ended
December 31, 1993).
4.3 Amended and Restated 1996 Equity Incentive Award Plan
5 Opinion of Counsel
23.1 Independent Accountants Consent
23.2 Consent of Counsel (included in Exhibit 5)
</TABLE>
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8, or Form F-3 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the 1934 Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
2
<PAGE> 4
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by a controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Chicago, State of Illinois, on this 12th day of May,
2000.
THE JOHN NUVEEN COMPANY
By /s/ ALAN G. BERKSHIRE
------------------------------------
Alan G. Berkshire
Senior Vice President, General
Counsel and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on May 12, 2000.
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<CAPTION>
SIGNATURE TITLE
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<C> <S>
* Chairman, Chief Executive Officer and Director
- ------------------------------------------------ (Principal Executive Officer)
Timothy R. Schwertfeger
* President and Director
- ------------------------------------------------
John P. Amboian
* Director
- ------------------------------------------------
Willard L. Boyd
* Director
- ------------------------------------------------
W. John Driscoll
* Director
- ------------------------------------------------
Duane R. Kullberg
* Director
- ------------------------------------------------
Douglas W. Leatherdale
* Director
- ------------------------------------------------
Paul J. Liska
/s/ MARGARET E. WILSON Senior Vice President, Finance
- ------------------------------------------------ (Principal Financial and Accounting Officer)
Margaret E. Wilson
*By /s/ ALAN G. BERKSHIRE
-------------------------------------------
Alan G. Berkshire
As Attorney-In-Fact for each
of the persons indicated
</TABLE>
4
<PAGE> 6
EXHIBIT INDEX -- CONFORM
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<C> <S> <C>
4.1 The Company's Restated Certificate of Incorporation
(incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-1 (NO. 33-46922))
4.2 Amended and Restated By - Laws (incorporated by reference to
Exhibit 3.2 of the Company's Form 10-k for year ended
December 31, 1993
*4.3 Amended and Restated 1996 Equity Incentive Award Plan
*5 Opinion of Counsel
*23.1 Independent Accountants Consent
*23.2 Consent of Counsel (included in Exhibit 5)
</TABLE>
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* Filed herewith
5
<PAGE> 1
EXHIBIT 4.3
PROSPECTUS DATED MAY 12, 2000
THE JOHN NUVEEN COMPANY
3,500,000 SHARES OF
CLASS A COMMON STOCK
(PAR VALUE $.01 PER SHARE)
ISSUABLE PURSUANT TO THE
NUVEEN AMENDED AND RESTATED 1996 EQUITY INCENTIVE AWARD PLAN
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE COMMISSION OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
No person has been authorized to give any information or to make any
representations, other than those contained in this Prospectus, in connection
with the offers described in this Prospectus and, if given or made, such
information or representations must not be relied upon as having been authorized
by The John Nuveen Company. This Prospectus does not constitute an offer to
sell, or the solicitation of any offer to buy, securities in any jurisdiction to
any person to whom it is unlawful to make such an offer in such jurisdiction.
------------------------
THIS DOCUMENT CONSTITUTES PART OF A PROSPECTUS COVERING SECURITIES THAT HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933.
1
<PAGE> 2
DOCUMENTS INCORPORATED BY REFERENCE AND AVAILABLE INFORMATION
The following documents previously filed by The John Nuveen Company (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference herein and shall be deemed to be a part hereof:
(1) The Company's Annual Report on Form 10-K for the year ended December
31, 1998.
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") since
the end of the last fiscal year covered by the registrant document
referred to in (1) above.
(3) The description of the Company's Class A Common Stock contained in the
Registration Statement on Form 8-A, filed with the Commission pursuant
to Section 12 of the Exchange Act on July 9, 1996, including any
amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Section 10(a) Prospectus for the Nuveen 1996
Equity Incentive Award Plan (the "Equity Plan") and to be part hereof from their
respective dates of filing (such documents, and the documents enumerated above,
being hereinafter referred to as "Incorporated Documents").
Any statement contained in an Incorporated Document shall be deemed to be
modified or superseded for purposes of this Section 10(a) Prospectus for the
Equity Plan to the extent that a statement contained herein or in any other
subsequently filed Incorporated Document modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Section 10(a) Prospectus
for the Equity Plan.
This Section 10(a) Prospectus for the Equity Plan incorporates documents by
reference which are not presented herein or delivered herewith. These documents
(except for certain exhibits to such documents, unless such exhibits are
specifically incorporated by reference herein) and other documents required to
be delivered to employees pursuant to Rule 428(b) of the Securities Act of 1933,
as amended, are available upon request without charge from Alan G. Berkshire,
Senior Vice President, General Counsel and Secretary of the Company, 333 West
Wacker Drive, Chicago, Illinois 60606, (312) 917-7700.
2
<PAGE> 3
AMENDED AND RESTATED 1996 EQUITY INCENTIVE AWARD PLAN
The John Nuveen Company hereby establishes the Amended and Restated 1996
Equity Incentive Award Plan for the benefit of its eligible Participants (as
hereinafter defined) for the purposes hereinafter set forth.
I. DEFINITIONS
(a) "Award" shall mean an award of Non-Qualified Stock Options, Restricted
Stock, or any combination thereof.
(b) "Beneficiary" shall mean (i) in the event of the Disability or
incompetence of a Participant, the person or persons who shall have acquired on
behalf of such Participant by legal proceeding or otherwise the right to receive
the benefits specified under this Plan, or (ii) in the event of a Participant's
death, the person, persons, trust or trusts which have been designated by such
Participant in his or her most recent written beneficiary designation filed with
the Committee to receive the benefits specified under this Plan, or, if there is
no designated Beneficiary or surviving designated Beneficiary, then the person,
persons, trust or trusts entitled by will or the laws of descent and
distribution to receive such benefits.
(c) "Board of Directors" shall mean the Board of Directors of the Company.
(d) "Bonus Committee" shall mean the senior executive officers of the
Company selected by the Board of Directors to administer the Company's Annual
Incentive Award Plan.
(e) "Cause" shall have the meaning specified by the Committee in connection
with the grant of any Award; provided, that if the Committee does not so
specify, "Cause" shall mean (i) the willful engaging by the Participant in
conduct which the Participant knows, or has substantial reason to believe, is
illegal to the extent of a felony violation (or the equivalent seriousness under
laws other than those of the United States) and which has effects on the Company
or the Participant materially injurious to the Company; (ii) any act or acts of
serious dishonesty or gross misconduct which result in material damage to the
Company or its business or reputation or which the Board of Directors reasonably
determines do materially and adversely affect the value, reliability or
performance of the Participant to the Company; (iii) the willful and continued
failure by the Participant to perform his or her duties to the Company (which
may include any sustained and unexcused absence of the Participant from the
performance of such duties, which absence has not been certified in writing as
due to physical or mental illness or Disability), after a written demand for
performance has been delivered to the Participant by the Board of Directors
identifying the manner in which the Participant has failed to substantially
perform his or her duties. For purposes of the proviso of the preceding
sentence: (i) no act or failure to act on the Participant's part shall be
considered "willful" unless done, or omitted to be done, in bad faith and
without reasonable belief that such action or omission was in, or not opposed
to, the best interests of the Company; (ii) any act or failure to act by the
Participant based upon authority given pursuant to a resolution duly adopted by
the Board of Directors of the Company or based upon the advice of counsel for
the Company shall be conclusively presumed to be done, or omitted to be done, in
good faith and in the best interests of the Company; and (iii) notwithstanding
the foregoing, the Participant shall not be deemed to have been terminated with
Cause unless and until there shall have been delivered to the Participant a copy
of a resolution duly adopted by the affirmative vote of a majority of the entire
Board of Directors of the Company at a meeting of the Board called and held
after such reasonable notice to the Participant and at which the Participant has
had an opportunity, together with his or her other counsel, to be heard before
such Board, finding that in the good faith opinion of such Board, the
Participant was guilty of the conduct set forth above and specifying the
particulars thereof in detail.
(f) "Change in Control" shall mean any of the following:
(i) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of
voting securities of the Company where such acquisition causes such Person
to own 20% or more of the combined voting power of the then outstanding
voting securities of the Company entitled to vote generally in the election
of directors (the "Outstanding Company Voting Securities"); provided,
3
<PAGE> 4
however, that for purposes of this subsection (i), the following
acquisitions shall not be deemed to result in a Change in Control: (A) any
acquisition directly from the Company, (B) any acquisition by the Company,
(C) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation controlled by the
Company or (D) any acquisition by any corporation pursuant to a transaction
that complies with clauses (A), (B) and (C) of subsection (iii) below; and
provided, further, that if any Person's beneficial ownership of the
Outstanding Company Voting Securities reaches or exceeds 20% as a result of
a transaction described in clause (A) or (B) above, and such Person
subsequently acquires beneficial ownership of additional voting securities
of the Company, such subsequent acquisition shall be treated as an
acquisition that causes such Person to own 20% or more of the Outstanding
Company Voting Securities; or
(ii) individuals who, as of the effective date hereof, constitute the
Board (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to the date hereof whose election, or nomination for
election by the Company's shareholders, was approved by a vote of at least
a majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board,
but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors or other
actual or threatened solicitation of proxies or consents by or on behalf of
a Person other than the Board; or
(iii) The approval by the shareholders of the Company of (x) a
reorganization, merger or consolidation or sale, or other disposition of
all or substantially all of the assets of the Company or (y) the
acquisition of assets or stock of another corporation in exchange for
voting securities of the Company (each of (x) and (y), a "Business
Combination") or, if consummation of such Business Combination is subject,
at the time of such approval by shareholders, to the consent of any
government or governmental agency, the obtaining of such consent (either
explicitly or implicitly by consummation); excluding, however, such a
Business Combination pursuant to which (A) all or substantially all of the
individuals and entities who were the beneficial owners of the Outstanding
Company Voting Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50% of, respectively,
the then outstanding shares of common stock and the combined voting power
of the then outstanding voting securities entitled to vote generally in the
election of directors, as the case may be, of the corporation resulting
from such Business Combination (including, without limitation, a
corporation that as a result of such transaction owns the Company or all or
substantially all of the Company's assets either directly or through one or
more subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination of the
Outstanding Company Voting Securities, (B) no Person (excluding any
employee benefit plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns, directly or
indirectly, (except to the extent that such ownership existed prior to the
Business Combination) an amount of, respectively, the then outstanding
shares of common stock of the corporation resulting from such Business
Combination or the combined voting power of the then outstanding voting
securities of such corporation representing the greater of (1) 20% thereof
or (2) a percentage thereof equal to or greater than the percentage thereof
held after such transaction by the persons who were the owners of the
Company's Class B stock prior to such transaction; and (C) at least a
majority of the members of the board of directors of the corporation
resulting from such Business Combination were members of the Incumbent
Board at the time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination; or
(iv) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
Notwithstanding the foregoing, unless a majority of the Incumbent Board
determines otherwise, no Change in Control shall be deemed to have occurred with
respect to a particular Participant if the Change in Control results from
actions or events in which such Participant is a participant in a capacity other
than solely as an officer, employee or director of the Company.
4
<PAGE> 5
(g) "Class A Common Stock" shall mean the Class A Common Stock of the
Company, par value $.01 per share.
(h) "Class B Common Stock" shall mean the Class B Common Stock of the
Company, par value $.01 per share.
(i) "Class B Directors" shall mean those members of the Board of Directors
of the Company that have been nominated and elected by the holders of the Class
B Common Stock in accordance with the provisions of the Company's certificate of
incorporation.
(j) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(k) "Committee" shall mean a committee of the Board of Directors, the
members of which are selected by and serve at the pleasure of the Board of
Directors; provided, however, that the Committee shall at all times consist of
at least two directors. The Committee shall initially be the Compensation
Committee of the Board of Directors.
(l) "Common Stock" shall mean the Class A Common Stock and the Class B
Common Stock.
(m) "Company" shall mean The John Nuveen Company, a Delaware corporation,
and its successors.
(n) "Constructive Termination" shall have the meaning specified by the
Committee in connection with the grant of any Award; provided, that if the
Committee does not so specify, "Constructive Termination" shall mean any of the
following, without the written consent of the Participant: (i) a substantial
adverse change in the Participant's position, authority, responsibilities or
titles; (ii) a requirement that the Participant retire before reaching age 65;
or (iii) a material reduction in the Participant's base salary, incentive
compensation opportunities, or other employee benefits; or (iv) in the case of
an officer/director, a requirement that the Participant relocate to an office or
location other than that at which he is based at the grant date of an Award. For
purposes of the proviso of the preceding sentence, a Participant shall not be
deemed to have terminated his or her employment as a result of Constructive
Termination unless he or she gives notice within 90 days after an event
described in such proviso and the Company has not cured the condition within 60
days of its receipt of such notice.
(o) "Deferred Dividend Equivalents" means Dividend Equivalents, the
delivery of which is deferred pursuant to Section 3.3(a), together with the
interest thereon specified in Section 3.3(c).
(p) "Deferred Restricted Stock" means Restricted Stock, the delivery of
which is deferred pursuant to Section 3.3(a).
(q) "Disability" shall mean the inability of a Participant to perform the
services normally rendered to his or her Employer due to a physical or mental
impairment that can be expected to be of either permanent or indefinite
duration, as determined by the Committee, and which results in the Participant's
inability to perform his or her normal duties to the Employer.
(r) "Dividend Equivalent" shall mean a right, provided automatically in
connection with an Award of Deferred Restricted Stock, to receive on the payment
date for any dividend on the Class A Common Stock cash compensation from the
Company equal to the dividend that would have been paid on such shares of
Restricted Stock (or the Fair Market Value of such dividend, if such dividend
would not have been paid in cash), if such shares had been issued and
outstanding, fully vested and held by the Participant on the record date for
payment of such dividend; provided, that if such dividend would not have been
paid in cash, the Dividend Equivalent with respect thereto shall not be paid
unless and until certificates evidencing the Deferred Restricted Stock with
respect to which it is paid are issued to the Participant (at which time such
Dividend Equivalent shall be paid together with interest thereon at the Prime
Rate from the date such dividend would have been payable until the payment date
for such Dividend Equivalent); and provided, further, that such payment of all
Dividend Equivalents may also be deferred pursuant to the deferral election with
respect to such Restricted Stock. Unless specifically provided otherwise, the
term "Dividend Equivalents" includes (but is not limited to) Deferred Dividend
Equivalents.
(s) "Effective Date" of an Award shall mean the date of the grant as
specified by the Committee.
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<PAGE> 6
(t) "Employer" shall mean the Company with respect to its employees and
each Nuveen Subsidiary with respect to its employees.
(u) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(v) "Exercise Price" shall mean the price at which each share of Class A
Common Stock covered by a Non-Qualified Stock Option may be purchased.
(w) "Fair Market Value" of a share of Class A Common Stock shall mean the
closing price of the Class A Common Stock on the New York Stock Exchange as
reported on the Composite Tape and published in The Wall Street Journal, or, if
there is no trading of the Class A Common Stock on the date in question, then
the closing price of the Class A Common Stock, as so reported and published, on
the next preceding date on which there was trading in the Class A Common Stock.
"Fair Market Value" of other property shall be determined by the Committee.
(x) "Non-Qualified Stock Option" or "Option" shall mean a right to purchase
a specified number of shares of Class A Common Stock at a specified price, which
is not intended to comply with the terms and conditions for a tax-qualified
stock option as set forth in Section 422 of the Code, as such section may be in
effect from time to time.
(y) "Nuveen Subsidiary" shall mean any corporation or other entity, of
which 50% or more of the normal voting power for the election of directors or
other managers is owned, directly or indirectly, by the Company.
(z) "Participant" shall mean an employee of the Company or a Nuveen
Subsidiary or a non-employee director of the Company who has been granted an
Award under the Plan.
(aa) "Performance Goals" shall mean performance goals established by the
Committee prior to the grant of an Award based on the attainment of one or any
combination of the following: specified levels of earnings per share from
continuing operations, operating income, revenues, return on operating assets,
return on equity, shareholder return (measured in terms of stock price
appreciation) and/or total shareholder return (measured in terms of stock price
appreciation and dividends), achievement of cost control, or stock price, in
each case of the Company or a Nuveen Subsidiary, or a division or department of
the Company or a Nuveen Subsidiary for or within which the Participant is
primarily employed, and that are intended to qualify under Section 162(m) of the
Internal Revenue Code. Such Performance Goals also may be based upon attaining
specified levels of Company performance under one or more of the measures
described above relative to the performance of other corporations. Such
Performance Goals shall be set by the Committee within the time period
prescribed by Section 162(m).
(bb) "Plan" shall mean this Nuveen Amended & Restated 1996 Equity Incentive
Award Plan.
(cc) "Prime Rate" shall mean the prime rate of interest as reported by The
First National Bank of Chicago or any successor thereto, or a comparable bank
selected by the Committee.
(dd) "Restricted Stock" shall mean an award of shares of Class A Common
Stock subject to restrictions on transferability, a risk of forfeiture, and
certain other terms and conditions under the Plan or specified by the Committee.
The restrictions on and risk of forfeiture of Restricted Stock generally will
expire on a specified date, upon the occurrence of an event and/or on an
accelerated basis under certain circumstances specified in the Plan or an
agreement relating to the Restricted Stock. Unless specifically provided
otherwise, the term "Restricted Stock" includes (but is not limited to) Deferred
Restricted Stock.
(ee) "Retirement" shall mean the retirement of a Participant from the
employment of the Company or a Nuveen Subsidiary at (i) such Participant's
normal retirement date upon reaching age 65, or (ii) such Participant's early
retirement either (A) upon having reached that age, which, when added to his or
her years of continuous service (as such term is defined under the Nuveen
Employees' Retirement Plan or any successor thereto) is equal to or greater than
90, or (B) with the approval of the Committee.
(ff) "Section 162(m)" shall mean Section 162(m) of the Code and the
Treasury Regulations thereunder.
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(gg) "Termination of Employment" shall mean a cessation of the
employee-employer relationship between a Participant and an Employer (other than
by reason of transfer of the employee to another Employer), or the consummation
of a transaction whereby a Participant's Employer (other than the Company)
ceases to be a Nuveen Subsidiary (such consummation, a "Disaffiliation
Transaction"). The employment of a Participant who is on an approved leave of
absence in excess of two years shall be considered terminated as of the
commencement of such leave for all purposes of the Plan.
II. THE PLAN
2.1 Purposes.
The purposes of the plan are to enable the Company and Nuveen Subsidiaries
to attract and retain exceptionally qualified employees (and non-employee
directors) upon whom the sustained growth and profitability of the Company and
Nuveen Subsidiaries will depend in large measure, to provide added incentive for
such individuals to enhance the value of the Company for the benefit of its
stockholders, and to strengthen the mutuality of interests between Participants
and the Company's stockholders by providing equity-based incentive awards. The
Plan is intended to achieve these purposes through the award of Non-Qualified
Stock Options and Restricted Stock.
2.2 Administration.
The Plan shall be administered by the Committee. Any action of the
Committee with respect to the administration of the Plan shall be taken pursuant
to a majority vote or the written consent of a majority of its members. The
Committee may (i) delegate to any one or more of the members thereof or to an
officer of the Company any of its authority with respect to the Plan, other than
any such delegation that would cause Awards or other transactions under the Plan
to cease to be exempt from Section 16(b) of the Exchange Act or to cease to
quality as "performance-based compensation" under Section 162(m) of the Code,
and (ii) authorize any one or more of the members thereof or any officer of the
Company to execute and deliver documents on behalf of the Committee.
Subject to the express provisions of the Plan, the Committee shall have the
authority to construe and interpret the Plan, to define the terms used herein,
to prescribe, amend and rescind rules and regulations relating to administration
of the Plan and to make all other determinations necessary or advisable for the
administration of the Plan. The determinations of the Committee on the foregoing
matters shall be conclusive. The duties of the Committee shall include, but
shall not be limited to, selecting individuals for participation in the Plan,
determining the types, sizes, terms and provisions of Awards (which need not be
identical), making disbursements and settlements of Awards, creating trusts,
determining whether to defer or accelerate the vesting of, or the lapsing of
restrictions or risk of forfeiture with respect to, Non-Qualified Stock Options,
Restricted Stock, construing the provisions of the Plan, modifying the terms of
any Award, and authorizing the exchange or replacement of Awards; provided,
however, that no such modification, exchange or substitution shall be to the
detriment of a Participant with respect to any Award previously granted, and
provided, further, that in no event shall the Committee be permitted to reduce
the Exercise Price of any outstanding Option or to exchange or replace an
outstanding Option with a new Option with a lower Exercise Price, except
pursuant to Section 4.1. Subject only to compliance with the express provisions
of the Plan, the Committee may act in its sole and absolute discretion in
performing the duties specifically set forth in the preceding sentence and other
duties under the Plan. The Committee shall have the power and authority to
appoint and authorize such of the Company's officers or other persons to perform
such functions in the execution and administration of the Plan (other than the
interpretation of the Plan and the adoption of rules governing its execution and
administration) as the Committee shall determine from time to time. No member of
the Committee shall be liable for any action, failure to act, determination or
interpretation made in good faith with respect to the Plan or any transaction
hereunder. Notwithstanding any other provision of the Plan, if the Committee
designates an Award of Restricted Stock as being intended to qualify as
"performance-based compensation" under Section 162(m), neither the Committee nor
the Board of Directors shall have any power to take any action with respect to
such Award, if the result would be to cause it to cease to qualify as
"performance-based compensation" under Section 162(m).
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2.3 Participation.
Officers and other employees of the Company or a Nuveen Subsidiary,
including those who also serve as directors of the Company or a Nuveen
Subsidiary, and non-employee directors of the Company shall be eligible to
participate in the Plan upon selection and approval by the Committee. The
Committee may, in its discretion, delegate to the Bonus Committee of the Board
of Directors the authority to select individuals for participation in the Plan
and to whom Awards may be granted, provided that such individuals are not
subject to Section 16(b) of the Exchange Act. Participants shall be selected
because they are in a position to have a significant impact on achieving the
long-term profit and growth objectives of the Company and/or a Nuveen
Subsidiary. An individual who has received Awards may, if otherwise eligible, be
granted additional Awards if the Committee shall so determine. Awards granted
under the Plan may be terminated or forfeited upon the occurrence of such events
or in such circumstances, including at or following a Participant's Termination
of Employment, as the Committee shall specify.
2.4 Shares Reserved for Plan.
(a) The total number of shares of Common Stock reserved and available for
issuance in connection with Awards under the Plan shall be 7,300,000 (including
the 3,800,000 shares approved in February 1996 and the additional 3,500,000
shares approved in March 1999), all of which shall be Class A Common Stock;
provided however that the total number of shares of Class A Common Stock that
may be issued in connection with the awards of Restricted Stock under the
Restated Equity Plan shall not exceed 950,000. The maximum number of shares of
Class A Common Stock with respect to which any one Participant may be granted
Awards in any one calendar year shall be 600,000 for Options and 120,000 for
Restricted Stock. Except as contemplated by the provisions of Section 4.1(a)
hereof, the Committee shall not increase the number of shares available for
issuance in connection with Awards under the Plan or to any one individual as
set forth above. In no event shall Awards be outstanding at any one time that
have resulted or could result in the issuance of a number of shares of Class A
Common Stock in excess of the number then remaining reserved and available for
issuance under the Plan. If any shares of Class A Common Stock subject to an
Award are forfeited or such Award otherwise terminates without a distribution of
shares to the Participant, or if shares of Class A Common Stock are tendered to
the Company in satisfaction of the exercise price of, or in payment of any
required income tax withholding for, an option awarded hereunder, any shares
counted against the number of shares reserved and available under the Plan with
respect to such Award shall, to the extent of any such forfeiture, termination
or tender, again be available for Awards under the Plan.
(b) Notwithstanding the foregoing, Awards granted through the assumption
of, or in substitution or exchange for, similar awards in connection with the
acquisition of another corporation or business entity shall not be counted for
purposes of applying the above limitations on numbers of shares available for
Awards generally or any particular kind of Award under the Plan.
(c) Any shares of Class A Common Stock distributed pursuant to an Award may
consist, in whole or in part, of authorized and unissued shares or treasury
shares.
III. AWARDS UNDER THE PLAN
3.1 In General; "In Lieu Awards".
(a) Non-Qualified Stock Options and Restricted Stock may be awarded in
accordance with the provisions of the Plan and on such other terms and
conditions as are not inconsistent with the purposes and provisions of the Plan.
Awards granted under the Plan may be granted either alone or in addition to, in
tandem with, or in substitution for, any other Award granted under the Plan or
any award granted under any other plan of the Company or any Nuveen Subsidiary
or any other right of a Participant to receive payment from the Company or any
Nuveen Subsidiary.
(b) Without limiting the generality of the foregoing, the Committee may
from time to time make an Award hereunder in lieu of (and the vesting of which
may be contingent upon the recipient's having earned at some future period) a
specified cash award under the Nuveen 1999 Executive Officer Performance Plan or
the
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Nuveen Annual Incentive Award Plan (the "Incentive Plans"). In this event, the
Committee shall establish at the time of the grant of such an "In Lieu Award"
the "Fair Value" of such award, which shall be the amount by which the cash
award otherwise payable to the recipient under the Incentive Plans for one or
more specified Plan Years will be reduced (and the vesting of the In Lieu Award
may be dependent upon having earned an award under the Incentive Plans at least
equal to the Fair Value of the In Lieu Award). In determining "Fair Value," the
Committee may take into account such factors as it deems appropriate, including
but not limited to the Fair Market Value of the shares represented by any award,
any restrictions on vesting and transferability of an award, and values
calculated by option pricing models.
(c) After the Committee has approved the grant of an Award to a Participant
and established the applicable terms and conditions of the Award applicable to
such Participant, such Participant shall be given written confirmation of such
Award.
3.2 Non-Qualified Stock Options.
All Non-Qualified Stock Options granted pursuant to the Plan shall be in
such form as the Committee shall from time to time determine and shall be
subject to such terms, conditions, restrictions and limitations as deemed
appropriate by the Committee and, in addition, to the following terms and
conditions:
(a) All Non-Qualified Stock Options awarded under the Plan shall represent
the right to purchase shares of Class A Common Stock.
(b) The Exercise Price for each share of Class A Common Stock covered by a
Non-Qualified Stock Option shall be determined and fixed by the Committee and
shall be set forth in such Option; provided, however, that the Exercise Price
shall in no event be less than the Fair Market Value of the Class A Common Stock
on the Effective Date of the Award, and provided, further, that in no event
shall the Exercise Price be less than the par value of the Class A Common Stock.
(c) Each Non-Qualified Stock Option awarded under the Plan shall be
evidenced by a Stock Option Agreement in a form approved by the Committee, to be
executed between the Company and the person to whom such Option is granted.
(d) The term of each Non-Qualified Stock Option shall be not more than ten
years from the date of grant, as the Committee shall determine, subject to
earlier termination as provided in Section 3.2(i).
(e) Except as otherwise provided in Section 3.2(i) or Section 4.1(b),
Non-Qualified Stock Options awarded to a Participant shall become exercisable on
such date or dates, and subject to such conditions, as specified by the
Committee in connection with the grant thereof. Any shares covered by an
exercisable Option that are not purchased on an applicable installment date may
be purchased at any time thereafter prior to the final expiration of the Option.
(f) Subject to the terms and conditions of the Option, during its term an
Option may be exercised only by the optionee, by a legal representative upon the
incapacity of the optionee or by the Beneficiary upon the death of the optionee,
by giving written notice of exercise to the Company prior to expiration of the
Option, specifying the number of shares to be purchased and accompanied by the
payment of the aggregate Exercise Price therefor.
(g) No partial exercise of any Option may be for less than 100 shares or
the number of shares remaining subject to such Option, whichever is less.
(h) The aggregate Exercise Price for all shares purchased pursuant to
exercise of an Option shall be paid for at the time of such purchase and prior
to the delivery of said shares either (i) in cash or by check, bank draft or
money order payable to the order of the Company, or (ii) subject to the
discretion of the Committee, through the delivery (actual or constructive) of
previously acquired shares of Class A Common Stock owned by the optionee, to the
extent that such payment does not require the delivery of a fractional share of
such previously acquired Class A Common Stock, and provided that such previously
acquired shares have been held by the optionee for at least six months, (iii)
subject to the discretion of the Committee, through the authorization of a third
party broker-dealer acceptable to the Company to sell shares of Class A Common
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Stock acquired upon exercise of the Option (or a portion thereof) and remit to
the Company a portion of the proceeds sufficient to pay the aggregate Exercise
Price of, and any required income tax withholding payments relating to, such
exercise, or (iv) a combination of, (ii) and (iii). For purposes of the
immediately preceding sentence, previously acquired shares of Class A Common
Stock shall be valued at the average of the high and low sales prices of the
Class A Common Stock on the New York Stock Exchange Composite Tape as of the
date of exercise.
(i) (1) Except as otherwise specified by the Committee at the time of
grant, in the case of Options that are not In Lieu Awards, in the event of
Termination of Employment of an optionee who is an employee of the Company or a
Nuveen Subsidiary other than by reason of the optionee's death, Disability or
Retirement, by the Employer without Cause, by the optionee as a result of
Constructive Termination or as a result of a Disaffiliation Transaction, any
Options previously awarded to such optionee that have not become exercisable as
of the date of Termination of Employment shall be forfeited, and all other
Options that are exercisable but have not been exercised as of the date of
Termination of Employment shall be exercisable for a period of 60 days following
the date of Termination of Employment (but not after the expiration date of the
Option) and shall, if not theretofore exercised, terminate upon the expiration
of such 60-day period. If Termination of Employment is by reason of the death,
Disability or Retirement of the optionee, any Options not exercised as of the
date of Termination of Employment (including Options that are otherwise not yet
exercisable) may be exercised by the optionee or the optionee's Beneficiary at
any time within three (3) years after the date of Termination of Employment (but
not after the expiration date of the Option) to the extent of the total number
of shares subject to Option. If Termination of Employment is by the Employer
without Cause, by the optionee as a result of Constructive Termination or as a
result of a Disaffiliation Transaction, any Options not exercised as of the date
of Termination of Employment (including Options that are otherwise not yet
exercisable) may be exercised by the optionee or the optionee's Beneficiary at
any time within sixty (60) days after the date of Termination of Employment (but
not after the expiration date of the Option) to the extent of the total number
of shares subject to Option.
(2) Except as otherwise specified by the Committee at the time of grant, in
the case of Options that are In Lieu Awards, in the event of Termination of
Employment of an optionee who is an employee of the Company or a Nuveen
Subsidiary other than by reason of the optionee's death, Disability or
Retirement, by the Employer without Cause, by the optionee as a result of
Constructive Termination or as a result of a Disaffiliation Transaction, any
Options previously awarded to such optionee that have not become exercisable as
of the date of Termination of Employment shall be forfeited, and all other
Options that are exercisable but have not been exercised as of the date of
Termination of Employment shall be exercisable for a period of 60 days following
the date of Termination of Employment (but not after the expiration date of the
Option) and shall, if not theretofore exercised, terminate upon the expiration
of such 60-day period. If Termination of Employment is by reason of the death,
Disability or Retirement of the optionee, by the Employer without Cause, by the
optionee as a result of Constructive Termination or as a result of a
Disaffiliation Transaction, any Options not exercised as of the date of
Termination of Employment (including Options that are otherwise not yet
exercisable) may be exercised by the optionee or the optionee's Beneficiary at
any time until the expiration date of the Option to the extent of the total
number of shares subject to Option; provided, however, that any such Options
awarded after March 1999 shall in no event remain exercisable for more than five
years following any such Termination of Employment.
(j) The grant and exercise of Options hereunder shall be subject to all
applicable rules and regulations of governmental authorities. Each Option shall
be subject to the requirement that, if at any time the Committee shall
determine, in its discretion, that the listing, registration or qualification of
the shares covered thereby upon any securities exchange or under any state or
federal law, or the consent or approval of any governmental regulatory body, is
necessary or desirable as a condition of, or in connection with, the granting of
such Option or the purchase of shares thereunder, the Company's obligation to
deliver shares upon exercise shall be conditioned upon such listing,
registration, qualification, consent or approval, which shall have been effected
or obtained free of any conditions not acceptable to the Committee.
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(k) The holder of an Option granted under this Plan shall have no rights as
a stockholder with respect to any shares of Class A Common Stock covered by such
Option until the date of issuance of a stock certificate for such shares.
(l) Unless an optionee could otherwise transfer shares issued upon exercise
of an Option without incurring liability under Section 16(b) of the Exchange
Act, at least six months must elapse from the date of grant of an Option to the
date of disposition of shares issued upon exercise of the Option.
(m) The Committee may, in its discretion, from time to time establish
procedures whereby optionees may elect to defer receipt of shares of Class A
Common Stock purchased by exercise of Options.
3.3 Restricted Stock.
(a) The Committee may grant Awards of Restricted Stock to Participants,
subject to such restrictions on transferability and such other restrictions as
the Committee may impose in its discretion, including without limitation the
achievement of Performance Goals. If a Participant so elects in accordance with
such procedures as the Committee may from time to time specify, the delivery of
such Restricted Stock and, if the deferral election so specifies, of the
Dividend Equivalents with respect thereto, shall be deferred until the date or
dates specified in such election.
(b) Restricted Stock other than Deferred Restricted Stock granted under the
Plan shall be evidenced by one or more certificates registered in the name of
the Participant and bearing an appropriate legend referring to the terms,
conditions, and restrictions applicable to such Restricted Stock. The Company
shall retain physical possession of such certificate, and each Participant
awarded such Restricted Stock shall deliver a stock power to the Company,
endorsed in blank, relating to the Restricted Stock, during the period when the
Restricted Stock is nontransferable and/or subject to a risk of forfeiture, at
the end of which period certificates evidencing such Restricted Stock shall be
delivered to the Participant (unless such Restricted Stock has previously been
forfeited pursuant to Section 3.3(e)). From the Effective Date of the Award of
such Restricted Stock through the earlier of (i) the date such Restricted Stock
is forfeited pursuant to Section 3.3(e) and (ii) the date certificates
evidencing such Restricted Stock are delivered to the Participant, the
Participant shall have all rights of a stockholder with respect to such shares,
including but not limited to the right to receive all dividends and other
distributions paid with respect thereto and to vote (in person or by proxy) such
shares at any meeting of the stockholders of the Company; provided, that any
dividend or distribution that is not payable in cash shall be subject to the
same restrictions on transferability and other restrictions as the Restricted
Stock with respect to which it is paid and shall be treated for all purposes of
the Plan as if it were part of the Award of such Restricted Stock.
(c) Deferred Restricted Stock shall not be issued until the date or dates
that it is to be delivered to the Participant in accordance with his or her
deferral election pursuant to Section 3.3(a), at which time certificates
evidencing such Deferred Restricted Stock shall be delivered to the Participant
(unless such Deferred Restricted Stock has previously been forfeited pursuant to
Section 3.3(e)). From the Effective Date of an Award of Deferred Restricted
Stock through the earlier of (A) the date such Deferred Restricted Stock is
forfeited pursuant to Section 3.3(e) and (B) the date certificates evidencing
such Deferred Restricted Stock are delivered to the Participant, the Participant
shall be entitled to receive as compensation from the Company Dividend
Equivalents with respect thereto, but shall have none of the rights of a
stockholder with respect to such shares; provided, that if the deferral election
made with respect to such Deferred Restricted Stock specifies that the Dividend
Equivalents will be deferred, the Dividend Equivalents shall not be paid until
the date or dates specified in such deferral election, at which time they shall
be paid together with interest thereon at the Prime Rate from the date such
Dividend Equivalents would otherwise have been paid until the actual payment
date.
(d) Neither Awards of Restricted Stock under the Plan which have not fully
vested under the vesting provisions applicable thereto, nor the right to vote
and receive dividends on unvested Restricted Stock which is not Deferred
Restricted Stock, nor the right to receive Dividend Equivalents on Deferred
Restricted Stock, may be sold, assigned, transferred, exchanged, pledged,
hypothecated or otherwise encumbered, and no such sale, assignment, transfer,
exchange, pledge, hypothecation or encumbrance, whether made or created by
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voluntary act of the Participant or of any agent of such Participant or by
operation of law, shall be recognized by, or be binding upon, or shall in any
manner affect the rights of, the Company or any of its subsidiaries, or any
agent or any custodian holding certificates for such stock pursuant to the
provisions of the Plan.
(e) Unless otherwise provided by the Committee, in the event of Termination
of Employment of a Participant other than by reason of the Participant's death,
Disability or Retirement, by the Employer without Cause, by the Participant as a
result of Constructive Termination, or as a result of a Disaffiliation
Transaction, all shares of Restricted Stock awarded to such Participant that
have not fully vested on the date of Termination of Employment shall be
forfeited by such Participant and neither the Participant nor any successors,
heirs, assigns or personal representatives of such Participant shall have any
rights or interest in such shares, and the Participant's name shall be deleted
from the list of the Company's stockholders with respect to such shares. If
Termination of Employment is by reason of the death, Disability or Retirement of
the Participant, by the Employer without Cause, by the Participant as a result
of Constructive Termination, or as a result of a Disaffiliation Transaction, all
restrictions and risk of forfeiture with respect to Restricted Stock that have
not fully vested on the date of Termination of Employment shall lapse and all
such shares of Restricted Stock shall become fully and irrevocably vested, all
Deferred Restricted Stock shall be immediately delivered and all Deferred
Dividend Equivalents shall be immediately paid in full to the Participant.
IV. OTHER PROVISIONS
4.1 Adjustments Upon Corporate Changes.
(a) Without limiting the provisions of subsection (b) of this Section 4.1,
in the event that (i) the outstanding shares of Common Stock are increased,
decreased, changed into or exchanged for a different number or kind of shares or
securities of the Company upon a reorganization, merger, recapitalization,
reclassification, stock split, reverse stock split, stock dividend, stock
consolidation or otherwise, or (ii) the Company makes any extraordinary
distribution of cash or property on the Common Stock, the Committee shall make
an appropriate and proportionate adjustment in the number and kind of shares
reserved and available for issuance under the Plan, in the Restricted Stock
theretofore awarded (if necessary to avoid an adverse effect on the value of
such Restricted Stock), and in the number and kind of shares subject to
outstanding Non-Qualified Stock Options and the exercise price thereof.
(b) Notwithstanding any other provision of the Plan, in the event of a
Change in Control, unless the right to accelerated vesting, the lapse of
restrictions or risk of forfeiture, or accelerated delivery or receipt of cash
provided for herein is waived or deferred by a Participant by written notice to
the Company delivered prior to the Change in Control, all restrictions and risks
of forfeiture on Awards (other than those imposed by law or regulation) shall
lapse, all deferral or vesting periods relating to Awards shall immediately
expire, and (i) all unexercised Options shall become immediately and fully
exercisable; (ii) all shares of Restricted Stock not previously vested shall
vest immediately and be delivered to the Participant entitled thereto; (iii) all
Deferred Restricted Stock shall be immediately delivered to the Participant
entitled thereto; and (iv) all Deferred Dividend Equivalents not previously paid
shall be immediately paid over to the Participant entitled thereto.
(c) The Committee shall be authorized to make adjustments in the terms and
conditions of, and the criteria included in, Awards, restriction periods and
deferral periods in recognition of unusual or nonrecurring events affecting the
Company or any Nuveen Subsidiary or the financial statements of the Company or
any Nuveen Subsidiary, or in response to changes in applicable laws,
regulations, or accounting principles; provided, however, that no such
modification shall be made to the detriment of a Participant with respect to any
Award previously granted; and provided, further, that no such modification may
be made if the result would be to cause an Award that was previously qualified
as "performance-based compensation" under Section 162(m) of the Code to cease to
so qualify.
4.2 Rights of Participants and Beneficiaries.
(a) Nothing contained in the Plan (or in any documents evidencing an Award)
shall confer upon any Participant any right to continue in the employ of his or
her Employer or constitute any contract or agreement
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of employment or interfere in any way with the right of such Employer to reduce
such Participant's compensation from the rate in effect at the time of an Award
or to terminate such Participant's employment with or without cause, but nothing
contained herein or in any document evidencing an Award shall affect any other
contractual rights of a Participant. No Participant or other person shall have
any claim to be granted any Award under the Plan, and there is no obligation for
uniformity of treatment of Participants.
(b) All settlements of Awards shall be made hereunder only to the
Participant or his or her Beneficiary entitled thereto pursuant to the Plan.
Neither the Company nor any Nuveen Subsidiary shall be liable for the debts,
contracts, or engagements of any Participant or his or her Beneficiary, and
rights relating to Awards under this Plan may not be taken in execution by
attachment or garnishment, or by any other legal or equitable proceeding while
in the hands of an Employer; nor shall any Participant or his or her Beneficiary
have any right to assign, pledge or hypothecate any benefits or rights
hereunder.
(c) Except as provided in Section 3.3(d) with respect to Restricted Stock
that is not Deferred Restricted Stock, no Award shall confer on any Participant
any of the rights of a shareholder of the Company (including any right to
receive dividends) unless and until shares of Common Stock are registered in the
name of and delivered to such person in connection with such Award.
(d) No fractional shares shall be issued or delivered pursuant to the Plan
or any Award. The Committee shall determine whether cash, other Awards, or other
property shall be issued or paid in lieu of fractional shares or whether such
fractional shares or any rights thereto shall be forfeited or otherwise
eliminated.
4.3 Governing Law.
This Plan and documents evidencing Awards or rights relating to Awards
shall be construed, administered and governed in all respects under and by the
laws of the State of Delaware. If any provision of this Plan shall be held by a
court of competent jurisdiction to be invalid or unenforceable, the remaining
provisions hereof shall continue to be fully effective.
4.4 Withholding.
The Company shall have the right to deduct any sums that federal, state,
local or foreign tax laws may require to be withheld with respect to Awards,
settlement of Awards, and the payment of dividends, Dividend Equivalents and
interest with respect to Awards. Subject to the rules and regulations of the
Committee, this authority shall permit (but shall not obligate) the Company to
withhold and to make cash payments in respect thereof in satisfaction of a
Participant's tax obligations, including tax obligations in excess of mandatory
withholding requirements (but not in excess of the maximum marginal tax rate).
The Company may require, as a condition to issuing or delivering shares of Class
A Common Stock or cash in settlement of Awards or as payment of dividends,
Dividend Equivalents or interest with respect to Awards, that the Participant
pay to the Company any sums that may be required to satisfy any applicable
withholding tax, and unless otherwise determined by the Committee, withholding
obligations may be settled with shares of Class A Common Stock, including Class
A Common Stock that is part of the Award that gives rise to the withholding
requirement, in accordance with procedures established by the Committee. Except
as contemplated by the preceding sentence, the Company shall have no obligation
to advise any Participant of the existence of any tax or the amount which the
Company will be required to withhold.
4.5 Amendment and Termination of Plan and Awards.
Notwithstanding anything herein to the contrary other than the last
sentence of Section 2.2, the Board of Directors may, with the consent of a
majority of the Class B Directors, at any time and from time to time, terminate
or suspend the Plan or amend or modify any of its provisions and the terms and
provisions of any Awards theretofore made to Participants which have not been
settled; provided, however, that any such termination, suspension, amendment, or
modification of the Plan shall be subject to the approval of the Company's
stockholders within one year after such Board action if such stockholder
approval is required by any federal or state law or regulation or the rules of
any stock exchange or automated quotation system on which the Common Stock may
be listed or quoted, and provided, further, that, without the consent of an
13
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affected Participant, no termination, suspension, amendment, or modification of
the Plan or any outstanding Award may impair the rights of such Participant
under any Award theretofore granted; and provided, further, that no such
modification may be made if the result would be to cause an Award that was
previously qualified as "performance-based compensation" under Section 162(m) of
the Code to cease to so qualify; and provided, further, that the provisions of
Section 4.1(b) of the Plan shall not be amended in any respect following a
Change in Control.
4.6 Unfunded Status of Awards.
The Plan is intended to constitute an "unfunded" plan for incentive and
deferred compensation. With respect to any payments not yet made to a
Participant pursuant to an Award, nothing contained in the Plan or any Award
shall give any such Participant any rights that are greater than those of a
general creditor of the Company; provided, however, that the Committee may
authorize the creation of trusts or make other arrangements to meet the
Company's obligations under the Plan to deliver cash, shares of Common Stock,
other Awards, or other property pursuant to any Award or to provide other
benefits, which trusts or other arrangements shall be consistent with the
"unfunded" status of the Plan unless the Committee otherwise determines with the
consent of each affected Participant. The trustee of any trust established under
the Plan may be authorized to dispose of trust assets and reinvest proceeds in
alternative investments, subject to such terms and conditions as the Committee
may specify and in accordance with applicable law.
4.7 Restrictions on Transferability.
Except as otherwise provided by the Committee, awards under the Plan are
not transferable other than to a Beneficiary designated by the Participant in
the event of a Participant's death, or by will or the laws of descent and
distribution.
4.8 Effective Date.
This Plan was initially effective as of February 23, 1996, and, as amended
and restated, shall be effective as of March 19, 1999, subject to approval by
the Company's stockholders, and shall remain in effect until such time as action
may be taken to terminate or suspend the Plan pursuant to Section 4.5, or until
such time as no shares remain reserved and available for issuance and the
Company has no further obligation with respect to any Award granted under the
Plan.
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EXHIBIT 5
May 10, 2000
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
Ladies and Gentlemen:
As Senior Vice President, General Counsel and Secretary of The John Nuveen
Company, a Delaware corporation (the "Company"), I am familiar with the
Registration Statement on Form S-8 (the "Registration Statement") being filed by
the Company under the Securities Act of 1933, as amended, relating to the
registration of 3,500,000 shares of the Company's Class A Common Stock, par
value $.01 per share, (the "Class A Common Stock") issuable pursuant to the
Amended and Restated 1996 Equity Incentive Award Plan (the "Equity Plan"). The
Equity Plan was approved by the Company's Board of Directors in March 1999 and
was approved by the Company's shareholders at the Annual Meeting held in May
1999 (the "Annual Meeting").
I am also familiar with the Company's Restated Certificate of Incorporation
and its By-Laws, and with all corporate and other proceedings taken by the Board
of Directors relative to the authorization of the Equity Plan. I have relied as
to factual matters on certificates or other documents furnished by the Company
or its officers and by governmental authorities and upon such other documents
and data that I deemed appropriate. I am not a member of the Bar of any
jurisdiction other than the State of Illinois and I express no opinion as the
law of any jurisdiction other than the laws of the State of Illinois and the
General Corporation Law of the State of Delaware.
Based on such examination and review and subject to the foregoing, it is my
opinion that the Company is a corporation duly organized and validly existing
under the laws of the State of Delaware; that the Equity Plan, including the
authority to issue up to 3,500,000 shares of the Class A Common Stock
thereunder, has been duly authorized by appropriate corporate action of the
Company; and that the aforesaid 3,500,000 shares of the Class A Common Stock,
when issued pursuant to the provisions of the Equity Plan, will be legally
issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to its use in connection therewith. In giving such
consent, I do not hereby admit that I am in the category of persons whose
consent is required under Section 7 of the Securities Act of 1933, as amended.
Very truly yours,
/s/ Alan G. Berkshire
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Alan G. Berkshire
Senior Vice President,
General Counsel and Secretary
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT ACCOUNTANTS' CONSENT
The Board of Directors
The John Nuveen Company:
We consent to the use of our report dated January 19, 2000, incorporated
herein by reference, relating to the consolidated balance sheets of The John
Nuveen Company as of December 31, 1999 and 1998, and the related consolidated
statements of income, changes in common stockholders' equity, and cash flows for
each of the years in the three-year period ended December 31, 1998, which report
appears in the December 31, 1999 annual report on Form 10-K of The John Nuveen
Company.
Chicago, Illinois
May 12, 2000
